Quilling v. U.S., 02-900.

• Decision Date: 18 December 2002
• Docket Number: No. 02-900.,02-900.
• Citation: 243 F.Supp.2d 872
• Parties: Gary Cortez QUILLING, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of Illinois

243 F.Supp.2d 872

Gary Cortez QUILLING, Petitioner, v. UNITED STATES of America, Respondent.

No. 02-900.

United States District Court, S.D. Illinois, East St. Louis Division.

December 18, 2002.

COPYRIGHT MATERIAL OMITTED

Gary Cortez Quilling, Greenville, IL, pro se.

Richard H. Lloyd, Asst. U.S. Attorney, Fairview Heights, IL, for Respondent.

OPINION

RICHARD MILLS, District Judge.

Two trials by two different juries and two different judges resulted in Quilling's convictions.

One appeal affirmed his convictions and sentence.

Now, Quilling has filed a motion to vacate, set aside, or correct his convictions and sentence pursuant to 28 U.S.C. § 2255.

It is the procedural end of the line for Petitioner Quilling.

Petition denied.

I. BACKGROUND¹

On July 9, 1999, a jury found Petitioner guilty of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). However, Petitioner was not sentenced on this conviction; rather, on August 28, 2000, the Court allowed Petitioner's motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. United States v. Quilling, 109 F.Supp.2d 1009 (S.D.Ill.2000). Thereafter, the Court set the matter for a new trial.

On September 21, 2000, a federal grand jury superseded the Indictment returned against Petitioner to add a second count alleging Petitioner to have been a felon in possession of firearm ammunition in violation of 18 U.S.C. § 922(g)(1).² On October

(S.D.Ill.2000), and United States v. Quilling, 261 F.3d 707 (7th Cir.2001) 30, 2000, a jury found Petitioner guilty of both Counts charged in the Indictment. Accordingly, on January 4, 2001, the Court sentenced Petitioner to 78 months of imprisonment on each Count of conviction and ordered his sentences to be served concurrently.

On August 20, 2001, the United States Court of Appeals for the Seventh Circuit affirmed Petitioner's convictions and sentence. United States v. Quilling, 261 F.3d 707 (7th Cir.2001). On November 13, 2001, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. Quilling v. United States, 534 U.S. 1034, 122 S.Ct. 576, 151 L.Ed.2d 447 (2001). On July 30, 2002, Petitioner filed the instant petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.

II. PETITIONER'S CLAIMS

Petitioner now raises three reasons why his convictions and sentence should be vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255.

First, Petitioner argues that his convictions and sentence should be vacated, set aside, or corrected because the Court engaged in judicial misconduct prior to his trial.

Second, Petitioner contends that he is entitled to relief pursuant to 28 U.S.C. § 2255 based upon prosecutorial misconduct.

Third, Petitioner argues that his convictions and sentence should be vacated, set aside, or corrected because he received ineffective assistance of counsel in violation of his Sixth Amendment rights.

Accordingly, Petitioner asks the Court to conduct an evidentiary hearing and to, thereafter, either grant him a new trial or vacate his convictions and sentence outright.

III. ANALYSIS

Ordinarily, claims not raised on appeal are procedurally defaulted. Barker v. United States, 7 F.3d 629, 632 (7th Cir.1993). "A § 2255 petition is not a substitute for direct appeal." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996), citing Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.1989). However, constitutional claims may be raised for the first time in a collateral attack if the petitioner can show cause for the procedural default and prejudice from the failure to appeal. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir.1996). If a petitioner is unable to demonstrate both cause and prejudice, Petitioner may be able to obtain habeas review only if he can persuade the court that the dismissal of his petition would result in a fundamental miscarriage of justice. Murray v. Carrier, All U.S. 478, 495, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

A. JUDICIAL MISCONDUCT

Petitioner did not raise his claim of judicial misconduct on appeal, and thus, he has procedurally defaulted this claim. Barker, 7 F.3d at 632. Therefore, Petitioner must establish both cause for and prejudice from his failure to appeal this issue in order to prevail on his § 2255 petition Frady, 456 U.S. at 167-68, 102 S.Ct. 1584. Petitioner has failed to do so.

In his reply to the Government's response to his § 2255 petition, Petitioner contends that the Court's rescheduling of his trial by sixteen days prejudiced him because, if he would have had more time to study and prepare for the trial, then he could have contacted his witnesses and could have better prepared his defense.

However, the Court's rescheduling of the trial actually gave Petitioner more time to prepare, not less. The Court moved Petitioner's trial from October 10, 2002, to October 26, 2002. As such, Petitioner has failed to show that the Court's rescheduling of his trial prejudiced him in any way, and therefore, Petitioner has procedurally defaulted his judicial misconduct claim.³

To the extent that he is arguing that the Court's rescheduling of his trial prejudiced him in that it allowed the two Counts charged against him in the Second Superseding Indictment to be tried together, Petitioner did argue this point on appeal, and thus, he has not procedurally defaulted this claim. However, the Seventh Circuit held that the Court did not err in denying Petitioner's motion to sever. Quilling, 261 F.3d at 713-15.

"[O]nce this court [the Seventh Circuit] has decided the merits of a ground of appeal, that decision establishes the law of the case and is binding on a district judge asked to decide the same issue in a later phase of the same case, unless there is some good reason for re-examining it." United States v. Mazak, 789 F.2d 580, 581 (7th Cir.1986); see Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)(holding that "the [law of the case] doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case."). "The doctrine, however, allows some flexibility, permitting a court to revisit an issue if an intervening change in the law, or some other special circumstance, warrants reexamining the claim." United States v. Thomas, 11 F.3d 732, 736 (7th Cir.1993). "It [the law of the case doctrine] will not be enforced where doing so would produce an injustice." Mazak, 789 F.2d at 581.

Here, the Court finds no good reason to re-examine the severance issue. The Seventh Circuit fully addressed Petitioner's arguments with respect to the Court's denial of his motion to sever and found them to be lacking. Petitioner has not cited any intervening change in the law, has not tendered any new evidence with which to convince the Court that its previous ruling was in error, and has not pointed the Court to any special circumstance which warrants re-examining this issue. Therefore, to the extent that Petitioner is asking the Court to vacate, set aside, or correct his sentence based upon his claim of judicial misconduct, his § 2255 petition is denied.

B. PROSECUTORIAL MISCONDUCT

Petitioner has cited four instances of misconduct by the prosecutor which he asserts entitles him to relief pursuant to 28 U.S.C. § 2255. First, Petitioner claims that law enforcement officials failed to timely give him his Miranda warnings. Second, Petitioner contends that the Government's attorney tendered false and misleading evidence to the jury during his trial in order to obtain his conviction. Third, Petitioner argues that the Government sought and obtained a Superseding Indictment because he exercised his Constitutional right to a jury trial. Fourth, Petitioner asserts that the Government's attorney breached the agreement which the prosecutor had made with him and his counsel regarding the tendering of an expert witness by the Government (who would testify that Petitioner's fingerprints were not found on the gun at issue in Count I of the Indictment) in exchange for his signing four stipulations which were used by the Government at trial.

Like his judicial misconduct claim, Petitioner did not raise his prosecutorial misconduct claim on appeal, and so, he must establish cause and prejudice in order to succeed on his claim. The Court finds that Petitioner has suffered no prejudice as a result of any actions taken by the Government's attorney.

1. Miranda Warning

As the Government notes in its response to Petitioner's § 2255 petition, Petitioner has denied in his petition that he made any statement to the Deputies of the United States Marshal's Service ("the Deputies") on September 3, 1998. If Petitioner did not make any statement(s) on the night in question, then it was not error for the Deputies not to give him his Miranda warnings. See United States v. Wright, 971 F.2d 176, 180 (8th Cir.1992)(finding no Fifth Amendment violation where the defendant "made no statements to police, from the time he was handcuffed until he was read Miranda warnings about five to ten minutes later. Police are required to issue Miranda warnings only prior to custodial interrogation."); see also United States v. Horton, 3 Fed.Appx. 158, 159 (4th Cir.2001)(holding that, because the defendant did not make any statements upon his arrest, there was no violation of his rights based upon the officer's failure to give the defendant his Miranda warnings).

Alternatively, Petitioner argues that, even if he did make the statements attributed to him by the Deputies on the way to the Marshal's office, the Government violated his Fifth Amendment right against self-incrimination because the Deputies did not give him his Miranda warnings prior to his making the incriminating statement. However, if the Court is to assume that Petit...